United States v. Edward Raiburn ( 2021 )


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  •                 United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 20-3314
    ___________________________
    United States of America
    lllllllllllllllllllllPlaintiff - Appellee
    v.
    Edward Lee Raiburn
    lllllllllllllllllllllDefendant - Appellant
    ____________
    Appeal from United States District Court
    for the Southern District of Iowa - Central
    ____________
    Submitted: October 18, 2021
    Filed: December 15, 2021
    ____________
    Before SMITH, Chief Judge, WOLLMAN and LOKEN, Circuit Judges.
    ____________
    SMITH, Chief Judge.
    Edward Lee Raiburn pleaded guilty to one count of production of child
    pornography and was sentenced to 360 months’ imprisonment. On appeal, he argues
    that the district court1 erred in (1) applying a two-level enhancement for an offense
    involving “the commission of a sexual act or sexual contact,” U.S.S.G.
    § 2G2.1(b)(2)(A), and (2) applying a two-level enhancement for use of a computer
    to “solicit participation with a minor in sexually explicit conduct,” U.S.S.G.
    § 2G2.1(b)(6)(B)(ii). We affirm.
    I. Discussion
    K.N. resided in Oklahoma with her grandmother. In early 2019, K.N., then 12
    years old, dated Raiburn’s stepson. Because of K.N.’s involvement with Raiburn’s
    stepson, Raiburn knew K.N.’s age. Despite K.N.’s age, Raiburn began a sexual
    relationship with K.N. He had sexual intercourse with K.N. on June 17, 2019.
    Raiburn told K.N. not to tell anyone. They had sexual intercourse on at least ten
    occasions, including at Raiburn’s home. Raiburn wrote a note documenting “two
    occasions in which [he] had sex with K.N. in mid-June 2019,” which also set forth
    “handwritten rules and guidelines that were to be followed by Raiburn and K.N.”
    R. Doc. 44, at 20 (bold omitted). Raiburn and K.N. signed the note.
    In late July 2019, Oklahoma Child Protective Services notified K.N.’s mother
    that it had initiated an investigation into an alleged inappropriate relationship between
    Raiburn and K.N. As a result, K.N.’s mother moved K.N. to Des Moines, Iowa, to
    live with her.
    After K.N.’s move, Raiburn went to Des Moines at least twice in August 2019
    to meet K.N. On his first trip to Des Moines, Raiburn “bought K.N. a pre-paid cell
    phone for her to communicate with him.” Id. Raiburn traveled to Des Moines
    planning to have sex with K.N., but it did not occur.
    1
    The Honorable Rebecca Goodgame Ebinger, United States District Judge for
    the Southern District of Iowa.
    -2-
    On August 31, 2019, the Des Moines Police Department received a tip that a
    young girl was repeatedly entering and exiting a parked vehicle with an adult male
    inside it in the back of a library parking lot. An officer responded to the parking lot
    and found 37-year-old Raiburn and 13-year-old K.N.2 Raiburn told the officer that he
    and K.N. had traveled together from Oklahoma to Des Moines. K.N. told the officer
    that she lived in Oklahoma with her grandmother and that her grandmother was aware
    that she was with Raiburn in Des Moines. The officer, suspicious of the pair’s stories,
    called K.N.’s grandmother. K.N.’s grandmother refuted their tale. In fact, an
    Oklahoma court had issued a non-contact order stemming from suspicions of a sexual
    relationship between K.N. and Raiburn. K.N.’s grandmother further informed the
    officer that the family relocated K.N. to Des Moines to live with K.N.’s mother to
    keep K.N. away from Raiburn. The officer then contacted K.N.’s mother, who picked
    up K.N. The officer permitted Raiburn to leave.
    The same day, K.N.’s mother learned that K.N. had a prepaid cell phone that
    Raiburn had given her. K.N.’s stepfather looked through the phone’s contents and
    discovered sexually explicit photos and messages sent between Raiburn and K.N.
    K.N.’s mother and stepfather gave the cell phone to the police.
    The police counted over 3,400 text messages and 228 image file messages
    exchanged between Raiburn and K.N. between August 9, 2019, and August 31, 2019.
    Many of the messages were sexual in nature. In response to Raiburn’s requests, K.N.
    sent Raiburn multiple nude images, including images of her self-stimulating. K.N.
    used the cell phone that Raiburn had purchased for her to send the pictures. “Raiburn
    also sent photos to her of his penis.” Id. at 22 (bold omitted). And, “sometimes at the
    direction of Raiburn, [K.N] showered while FaceTime video messaging with Raiburn
    so Raiburn [c]ould watch her shower.” Id. (bold omitted). The text exchanges
    between K.N. and Raiburn graphically describe this conduct.
    2
    K.N. turned 13 years old on June 29, 2019.
    -3-
    For example, in a text exchange from August 12, 2019, Raiburn requested that
    K.N. send him “a close-up photo depicting [K.N.’s] genitals,” and K.N. complied. Id.
    at 42. Thereafter, “Raiburn sen[t] . . . two images to [K.N.] of what appears to be a
    male’s hands covered in semen.” Id. at 43. Three days later, on August 15, 2019,
    Raiburn texted K.N. to send him “a photo depicting [K.N.’s] genitals with [K.N.’s]
    finger inserted into her vagina,” and K.N. complied. Id. at 44. Raiburn then texted
    K.N. “a close-up picture of [his] erect penis with a message ‘You just made me super
    hard!!!!!’” Id. And, on August 21, 2019, after K.N. texted Raiburn that she was
    “getting ready for the shower,” Raiburn responded, “Ready when you are.” Id. at 48.
    Raiburn and K.N. ceased text messaging one another at 10:08 p.m., but they resumed
    texting one another at 10:48 p.m. Raiburn asked K.N. if she “s[aw] [him] cum,” and
    K.N. responded, “Yes. I am happy for you.” Id. at 49. Raiburn responded that he
    “wish[ed] [K.N.] would of [sic]” and asked K.N. if she was “embarrassed to play with
    [herself] in front of [Raiburn].” Id. K.N. replied, “No. I just miss you playing with
    me.” Id.
    A grand jury indicted Raiburn on four counts of producing child pornography,
    one count of attempted enticement of a minor, and two counts of interstate travel with
    intent to engage in a sexual act with a minor. Raiburn pleaded guilty pursuant to a
    written plea agreement to one count of producing child pornography. “As a factual
    basis for his plea of guilty, [Raiburn] admit[ted]” that
    [o]n August 15, 2019, [Raiburn] knowingly employed and used [K.N.]
    to engage in sexually explicit conduct with the purpose of producing a
    visual depiction of such conduct. Specifically, on August 15, 2019,
    [Raiburn] communicated with [K.N.] via cellular phone and [Raiburn]
    requested [K.N.] take a “selfie” photo of [K.N.’s] genitals and send
    [Raiburn] the photo via text message. [K.N.] then took a photo depicting
    the lascivious exhibition of [K.N.’s] genitals. [K.N.] took this photo
    using [K.N.’s] cell phone. [K.N.] then sent the photo to [Raiburn’s] cell
    phone via text message. On August 15, 2019, [K.N.] was in Des Moines,
    -4-
    Iowa. [K.N.] took the aforementioned photo utilizing an Alcatel cell
    phone, a device that was not manufactured in the State of Iowa.
    R. Doc. 30, at 3.
    The presentence investigation report (PSR) recommended a two-level
    enhancement for “[t]he offense involv[ing] the commission of a sexual act or sexual
    contact.” R. Doc. 44, at 24 (citing U.S.S.G. § 2G2.1(b)(2)(A)). The PSR referenced
    the August 12 text exchange. The PSR also recommended a two-level enhancement
    for “the offense involv[ing] the use of a computer or an interactive computer service
    to solicit participation with a minor in sexually explicit conduct.” Id. (citing U.S.S.G.
    § 2G2.1(b)(6)(B)(ii)). The PSR referenced the August 12 and August 15 text
    exchanges. Applying both enhancements, the PSR calculated a total offense level of
    40. A total offense level of 40, combined with a criminal history category of I, yielded
    a Guidelines range of 292 to 365 months’ imprisonment. The Guidelines range
    became 292 to 360 months’ imprisonment due to the statutory maximum of 30 years.
    See U.S.S.G. § 5G1.1(c)(1).
    Raiburn objected to application of the enhancements. The U.S. Probation
    Office gave two justifications in support of the two-level enhancement under
    § 2G2.1(b)(2)(A) for commission of a “sexual act” or “sexual contact.” First, the
    enhancement applied because “relevant conduct” included the sexual intercourse that
    occurred between Raiburn and K.N. in Oklahoma, prior to K.N.’s relocation to Des
    Moines. The sexual intercourse constituted a “sexual act.” Alternatively, the
    enhancement applied because the August 12 text exchange between Raiburn and K.N.
    included images of Raiburn’s hands covered in semen, which showed that a “sexual
    act” or “sexual contact” had occurred.
    Raiburn countered in his sentencing memorandum that the sexual intercourse
    in Oklahoma was not relevant conduct because “[a]ny sexual act that occurred prior
    -5-
    to K.N.’s move to Des Moines in July 2019 cannot be said to have been preparation
    for the offense of production of selfie-styled nude images of K.N. weeks later in
    August 2019.” R. Doc. 50, at 3. Additionally, Raiburn gave two reasons that his
    “touching of himself does not constitute ‘sexual contact’ as defined by [
    18 U.S.C. § 2246
    (3)].” 
    Id. at 4
    . First, the statute’s plain language “require[s] the touching of
    another person.” 
    Id.
     Second, the statute’s legislative history provides that it was
    intended to “‘reach all forms of sexual abuse of another,’ not self-directed activity.”
    
    Id.
     (quoting H.R. Rep. No. 99-594, at 11 (1986), as reprinted in 1986 U.S.C.C.A.N.
    6186, 6191). Raiburn also noted that “any conduct by K.N. while she was in Des
    Moines also does not justify the enhancement.” 
    Id.
     (citing United States v. Starr, 
    486 F. Supp. 2d 940
    , 946–47 (N.D. Iowa 2007)).
    As to the second enhancement, under § 2G2.1(b)(6)(B)(ii), the U.S. Probation
    Office asserted that the two-level enhancement for the use of a computer to “solicit
    participation with a minor in sexually explicit conduct” applied because Raiburn
    solicited “nude photographs of K.N. (to include photographs of K.N.’s genitals) via
    his cell phone.” R. Doc. 44, at 62.
    Raiburn’s reply disputed this interpretation of the guideline. Raiburn argued
    that § 2G2.1(b)(6)(B)(ii)’s “plain language requires that there be some solicitation of
    some participation by someone with K.N. in the sexually explicit conduct.” R. Doc.
    50, at 5. According to Raiburn, the enhancement “addresses ‘a situation in which one
    person solicits another person to engage in sexual activities with a minor,’ otherwise
    the phrase ‘participation with’ would be ‘rendered effectively meaningless.’” Id.
    (quoting United States v. Jass, 
    569 F.3d 47
    , 67 (2d Cir. 2009)). As a result, Raiburn
    maintained that his “[s]olicitation of nude selfie photographs [of K.N.] is not
    solicitation of ‘participation with’ a minor in sexually explicit conduct.” 
    Id.
    At sentencing, Raiburn did not dispute the PSR’s factual allegations. He only
    disputed whether the two enhancements applied to those facts. The government
    -6-
    presented no evidence in support of the enhancements, instead relying on the
    undisputed facts set forth in the PSR.
    After hearing the parties’ legal arguments, the district court applied both
    enhancements. First, the district court applied the § 2G2.1(B)(6)(b)(ii) enhancement.
    It noted Raiburn’s acknowledgment that the cell phone that he used “is a computer
    for purposes of this adjustment.” R. Doc. 69, at 19. Additionally, the court found that
    “the use of the computer is demonstrated twofold: One, by the defendant’s use of a
    cell phone and, two, by the use of the cell phone by the child.” Id. The court
    explained that K.N. “only had the cell phone because [Raiburn] gave it to her, and he
    gave it to her for the explicit purpose of continuing a sexual relationship that had
    caused [K.N.’s] family to have her leave the [S]tate of Oklahoma.” Id.
    The district court then determined that the cell phone was used “to solicit
    participation with [K.N.] in sexually explicit conduct.” Id. at 20. In support of its
    finding, the court cited, among other things, the August 21 text exchange, pointing
    out that contact between Raiburn and K.N. “cease[d] at 10:08 p.m. and then
    restart[ed] at 10:48,” with Raiburn “ask[ing] [K.N.] if she saw him cum. ‘Yes, I am
    happy for you,’ was the response.” Id. According to the court, the statement
    “indicate[d] that [Raiburn] masturbated while engaged in a FaceTime video chat with
    [K.N.].” Id. Masturbation, the court explained, is listed in “[t]he definition of
    ‘sexually explicit conduct.’” Id.
    And the court determined that the conduct constituted “participation with a
    minor.” Id. at 21. According to the court, Raiburn indicated in the August 21 text
    exchange that K.N. “was also engaging in some sort of masturbation by saying ‘I
    wish you would of’ in the context of reaching climax or orgasm. And then he ask[ed]
    why not.” Id. Thereafter, Raiburn asked K.N., “Are you embarrassed to play with
    yourself in front of me?,” to which K.N. responded, “No. I just miss you playing with
    me.” Id. The court found that the text exchange’s context made “clear that this is an
    -7-
    engagement in explicit sexual conduct by two people.” Id. The court explained that
    “no question [existed] that the individual on one side of a video connection who is
    watching, engaging with, and participating with the minor who is engaging in
    conduct as well is participating with that minor.” Id. The court noted that Raiburn and
    K.N. “used [the cell phones] for the purpose of transmitting the material live”;
    therefore, the court stated, “The fact that it was not saved for commemoration does
    not undermine the fact that the guidelines recognize that live transmission of material
    is sufficient.” Id.
    Second, the district court concluded that the § 2G.1(b)(2)(A) enhancement
    applied for sexual contact or a sexual act. The court discussed two “ways in which
    this adjustment would apply.” Id. at 22. The court first concluded that “the relevant
    conduct began when [Raiburn] was grooming [K.N.] for production of child
    pornography by engaging in unlawful sexual contact with [K.N.].” Id. Specifically,
    “the engagement in . . . sex acts with [K.N.] [in Oklahoma] was in preparation for or
    of the production of child pornography.” Id. at 23.
    The court next concluded that even if the sexual intercourse in Oklahoma did
    not constitute a sex act for purposes of the enhancement, “there was also sexual
    contact.” Id. According to the court, it had “previously found under similar facts that
    a request for a child to engage in touching of their genitals or engaging in other sex
    acts by a defendant qualifies for this adjustment.” Id. The court found “well-
    reasoned” decisions from the Second, Third, Sixth, and Eleventh Circuits holding that
    “there is no requirement that there be the contact of a different person and that the
    contact by [K.N.] in this case for [Raiburn’s] sexual arousal or gratification is
    sufficient for sexual contact to occur.” Id. at 24.
    After overruling Raiburn’s objections to the enhancements and hearing
    argument from the parties, the district court imposed a sentence of 360 months’
    imprisonment.
    -8-
    II. Discussion
    On appeal, Raiburn argues that the district court erred in applying each of the
    § 2G2.1(b) enhancements. “We review the district court’s factual findings for clear
    error and its construction and application of the sentencing guidelines de novo.”
    United States v. Stong, 
    773 F.3d 920
    , 925 (8th Cir. 2014).
    A. U.S.S.G. § 2G2.1(b)(2)(A)
    Raiburn argues that the district court erred in imposing the two-level
    enhancement under § 2G2.1(b)(2)(A) because “[a] sexual act or sexual conduct did
    not occur during the offense of conviction.” Appellant’s Br. at 11. Raiburn argues
    that “masturbation over a video call is not ‘sexual contact’ as defined by the relevant
    statute.” Id. His argument is unavailing.3
    “The two-level increase in USSG § 2G2.1(b)(2)(A) applies if the offense
    involved ‘the commission of a sexual act or sexual contact’. . . .” United States v.
    Cramer, 
    962 F.3d 375
    , 379 (8th Cir. 2020). Raiburn concedes that “other circuits
    have determined masturbation qualifies as ‘sexual contact’ under the Guideline.”
    Appellant’s Br. at 16 (citing United States v. Pawlowski, 
    682 F.3d 205
     (3d Cir. 2012);
    United States v. Shafer, 
    573 F.3d 267
     (6th Cir. 2009); United States v. Aldrich, 
    566 F.3d 976
     (11th Cir. 2009); United States v. Dean, 591 F. App’x 11 (2d Cir. 2014)
    (unpublished summary order)). Nevertheless, he urges this court “not [to] follow
    these circuits” because they “ignore a plain reading of the statute in an attempt to
    cover additional conduct.” 
    Id.
    3
    Additionally, Raiburn argues that the sexual intercourse that occurred in
    Oklahoma prior to the child pornography offense was not relevant conduct
    constituting a sexual act. Because we conclude that masturbation constitutes sexual
    contact, we need not address this argument.
    -9-
    “As with any question of statutory interpretation, we begin with the statute’s
    plain language.” Hodde v. Am. Bankers Ins. Co. of Fla., 
    815 F.3d 1142
    , 1144 (8th Cir.
    2016). Application Note 2 of § 2G2.1(b)(2)(A) defines “sexual contact” by cross
    referencing 
    18 U.S.C. § 2246
    (3). Cramer, 962 F.3d at 379. In turn, § 2246(3) defines
    “sexual contact” as “the intentional touching, either directly or through the clothing,
    of the genitalia . . . of any person with an intent to abuse, humiliate, harass, degrade,
    or arouse or gratify the sexual desire of any person.” (Emphases added.) In support
    of his argument that masturbation does not qualify as sexual contact under the
    statute’s plain language, Raiburn argues that (1) “‘intentional touching’ refers to the
    intent, and therefore conduct, of the defendant,” and (2) Congress did not expressly
    “include masturbation within the definition of sexual contact” despite doing so in
    other statutes. Appellant’s Br. at 16–17. Alternatively, Raiburn asserts that “two
    plausible interpretations for ‘sexual contact’” exist, meaning he is “entitled to the
    benefit of the more lenient one.” Id. at 17 (quoting United States v. Taylor, 
    640 F.3d 255
    , 260 (7th Cir. 2011)).
    Following our sister circuits, we reject Raiburn’s arguments and hold that “the
    plain meaning of ‘sexual contact’ under U.S.S.G. § 2G2.1(b)(2)(A) and 
    18 U.S.C. § 2246
    (3) includes the act of masturbating.” Aldrich, 
    566 F.3d at 979
    .4 First,
    “[s]ection 2246(3) clearly states that ‘sexual contact’ involves certain intentional
    touching of ‘any person.’ ‘Any person’ includes a person touching himself or
    4
    See also Pawlowski, 682 F.3d at 213 (holding that the “plain and
    unambiguous” language of § 2246(3) indicates that “masturbation [is] a form of
    ‘sexual contact’”); Shafer, 
    573 F.3d at
    273–74 (“[W]e hold that ‘sexual contact,’ as
    defined by § 2264(3), includes self-masturbation, as long as the other requirements
    of the statute are satisfied.”); Dean, 591 F. App’x at 15 (rejecting the defendant’s
    argument that § 2G2.1(b)(2)(A) “does not apply to images depicting a person
    touching himself or herself”).
    -10-
    herself.” Shafer, 
    573 F.3d at
    273 (citing Merriam Webster’s Collegiate Dictionary
    53 (10th ed. 1995) (defining “any” as “EVERY—used to indicate one selected
    without restriction”)); see also Pawlowski, 682 F.3d at 211 (“Indeed, ‘any’ means
    ‘every.’” (citing Oxford English Dictionary (2d ed. 1989) (“In affirmative sentences
    [‘any’] asserts concerning a being or thing of the sort named, without limitation as to
    which, and thus constructively of every one of them, since every one may in turn be
    taken as a representative.”))); Aldrich, 
    566 F.3d at 979
     (“The statute’s operative
    phrase ‘any person’ applies to all persons, including [the defendant] himself.”). Based
    on this plain-language analysis, Raiburn’s argument that “intentional touching” refers
    to the defendant’s conduct in touching another person fails.
    Second, we can compare Congress’s use of “any person” in defining “sexual
    contact” in § 2246(3) with its use of “another person” in defining “sexual act” in
    § 2246(2)(D).5 Pawlowski, 682 F.3d at 212. “[W]here Congress includes particular
    language in one section of a statute but omits it in another section of the same Act,
    it is generally presumed that Congress acts intentionally and purposely in the
    disparate inclusion or exclusion.” Id. (quoting Dean v. United States, 
    556 U.S. 568
    ,
    573 (2009)). We presume that Congress “intended to distinguish between ‘of any
    person’ in 
    18 U.S.C. § 2246
    (3) and ‘of another person’ in 
    18 U.S.C. § 2246
    (2)(D),
    so that ‘of another person’ does not include oneself but ‘of any person’ does.” 
    Id.
    “‘Another person’ clearly requires at least two individuals to be involved in the act.
    Thus, because Congress chose to use different language when defining ‘sexual
    contact,’ it seems clear that Congress intended not to limit ‘sexual contact’ in the
    same way it limited ‘sexual act.’” Shafer, 
    573 F.3d at 273
    .
    5
    Section 2246(2)(D) defines “sexual act” as the “intentional touching, not
    through the clothing, of the genitalia of another person who has not attained the age
    of 16 years with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the
    sexual desire of any person.” (Emphases added.)
    -11-
    Raiburn, however, relies on Congress’s inclusion of masturbation in defining
    “sexually explicit conduct” in a different statute to argue masturbation is excluded in
    § 2246(3). See Appellant’s Br. at 17 (citing 
    18 U.S.C. § 2256
    (2)(A)(iii) (defining
    “sexually explicit conduct” as including “actual or simulated . . . masturbation”)). But
    as Shafer points out, “[s]imply because [§ 2246(3)] does not specifically state that
    self-masturbation qualifies as ‘sexual contact’ does not mean that Congress intended
    for such an activity to be excluded, especially when self-masturbation falls squarely
    within the language of § 2246(3).” 
    573 F.3d at 273
    . Section 2246(3) does not require
    the involvement of multiple people “for ‘sexual contact’ to occur.” 
    Id.
    Third, § 2246(3)’s legislative history “does not evidence ‘a clearly expressed
    legislative intention to the contrary.’” Id. (quoting Consumer Prod. Safety Comm’n
    v. GTE Sylvania, Inc., 
    447 U.S. 102
    , 108 (1980)). Instead, the House Judiciary
    Committee’s report indicates that “the Sexual Abuse Act of 1986 (‘the Act’), of
    which § 2246(3) is a part, was drafted with the intention of ‘reach[ing] all forms of
    sexual abuse of another.’” Id. (alteration in original) (quoting H.R. Rep. No. 99-594,
    at 11 (1986), as reprinted in 1986 U.S.C.C.A.N. 6186, 6191). Congress broadly
    drafted the Act “‘to cover the widest possible variety of sexual abuse,’ further
    solidifying our belief that self-masturbation is encompassed by the term ‘sexual
    contact.’” Id. (quoting H.R. Rep. No. 99-594, at 12 (1986), as reprinted in 1986
    U.S.C.C.A.N. 6186, 6192).
    Here, the district court found, based on the undisputed facts set forth in the
    PSR, “that the contact by [K.N.] . . . for [Raiburn’s] sexual arousal or gratification is
    sufficient for sexual contact to occur.” R. Doc. 69, at 24. Indeed, the August 15 text
    exchange shows that K.N. masturbated at Raiburn’s request. The Sixth Circuit has
    similarly held that a minor victim’s “self-masturbation constitutes ‘sexual contact.’”
    Shafer, 
    573 F.3d at 279
    .
    -12-
    Furthermore, the August 12 and August 21 text exchanges support the district
    court’s finding that Raiburn masturbated during his communications with K.N. The
    Third and Eleventh Circuits have both held that “of any person” in § 2246(3) includes
    a defendant’s act of masturbating. See Pawlowski, 682 F.3d at 212 (3d Cir. 2012)
    (“[T]he language of the statute is unambiguous: it is clear that ‘of any person’
    includes a defendant himself and does not require the touching of the victim.”);
    Aldrich, 
    566 F.3d at 979
     (“[T]he plain meaning of ‘sexual contact’ under U.S.S.G.
    § 2G2.1(b)(2)(A) and 
    18 U.S.C. § 2246
    (3) includes the act of masturbating. The
    statute’s operative phrase ‘any person’ applies to all persons, including [the
    defendant] himself.”).
    Determining that § 2246(3)’s definition of “sexual contact” includes
    masturbation, however, does not end our inquiry into the applicability of the
    enhancement. See Shafer, 
    573 F.3d at 274
    . “The statutory requirements for ‘sexual
    contact’ also include two intent elements. The first . . . is the requirement that there
    was ‘the intentional touching . . . of the genitalia’ of [any person].” 
    Id.
     (second
    alteration in original) (quoting 
    18 U.S.C. § 2246
    (3)).“[T]he second intent requirement
    of § 2246(3) . . . [is] that there be ‘touching . . . of the genitalia . . . of [any person]
    with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual
    desire of any person.’” Id. (second and third alterations in original) (quoting 
    18 U.S.C. § 2246
    (3)).
    The undisputed facts show that both intent elements are satisfied. First, the
    August 12 and August 21 text exchanges support a finding that Raiburn intentionally
    touched his own genitalia. Second, the same text exchanges establish Raiburn’s intent
    to “arouse or gratify” K.N.’s or his own sexual desire.
    Accordingly, we affirm the district court’s application of the § 2G2.1(b)(2)(A)
    enhancement.
    -13-
    B. U.S.S.G. § 2G2.1(b)(6)(B)(ii)
    Raiburn next argues that the district court erred in imposing a two-level
    enhancement under U.S.S.G. § 2G2.1(b)(6)(B)(ii) because “the parties masturbating
    at the same time over a video call [does not] constitute[] ‘participation with’ a minor
    in sexually explicit conduct.” Appellant’s Br. at 18.
    Section 2G2.1(b)(6)(B) provides:
    If, for the purpose of producing sexually explicit material or for the
    purpose of transmitting such material live, the offense involved . . . (B)
    the use of a computer or an interactive computer service to (i) persuade,
    induce, entice, coerce, or facilitate the travel of, a minor to engage in
    sexually explicit conduct, or to otherwise solicit participation by a minor
    in such conduct; or (ii) solicit participation with a minor in sexually
    explicit conduct, increase by 2 levels.
    (Emphasis added.) “Subsection (b)(6)(B) is intended to apply only to the use of a
    computer or an interactive computer service to communicate directly with a minor or
    with a person who exercises custody, care, or supervisory control of the minor.”
    Id. cmt. n.6(B).
    Raiburn challenges the “participation with” element of § 2G2.1(b)(6)(B)(ii).
    According to Raiburn, the enhancement’s “plain language requires that there be some
    solicitation of some participation by someone with K.N. in the sexually explicit
    conduct.” Appellant’s Br. at 19. He maintains that because he and K.N. “were alone,
    acting independently, it cannot be said the two were ‘participating’ with each other.
    Further, Raiburn [asserts that he] could not ‘solicit’ himself to participate with K.N.”
    Id. We need not address Raiburn’s argument as to subsection (B)(ii) because we hold
    that even if the district court erred in applying it, the error is harmless because the
    record facts support the imposition of the enhancement under subsection (B)(i).
    -14-
    Subsection (i) applies “[i]f . . . the offense involved . . . the use of a computer
    . . . to . . . persuade, induce, entice, coerce, or facilitate the travel of, a minor to
    engage in sexually explicit conduct, or to otherwise solicit participation by a minor
    in [sexually explicit] conduct.” U.S.S.G. § 2G2.1(b)(6)(B)(i) (emphasis added).
    Raiburn argues that subsection (i) is inapplicable because “[t]he facts do not establish
    that [he] used a computer to facilitate the victim’s travel to engage in sexually explicit
    conduct.” Appellant’s Reply Br. at 2. He also asserts a lack of notice to address and
    challenge the use of subsection (i).
    Contrary to Raiburn’s first argument, the subsection’s plain language does not
    limit the offense to facilitating the minor’s travel to engage in sexually explicit
    conduct, but instead includes “solicit[ing] participation by a minor in [sexually
    explicit] conduct.” See U.S.S.G. § 2G2.1(b)(6)(B)(i); see also United States v.
    Roman-Portalatin, 476 F. App’x 868, 869 (1st Cir. 2012) (unpublished) (Souter, J.,
    sitting by designation).
    We also reject Raiburn’s second argument that lack of notice on the
    applicability of subsection (i) forecloses a finding of harmless error. The government
    has satisfied its burden of proving harmless error. See Roman-Portalatin, 486 F.
    App’x at 870. The factual basis for the guilty plea set forth in the plea agreement
    stated that Raiburn “knowingly employed and used [K.N.] to engage in sexually
    explicit conduct” by “communicat[ing] with [K.N.] via cellular phone and
    . . . request[ing] [K.N.] take a ‘selfie’ photo of [her] genitals and send [Raiburn] the
    photo via text message.” R. Doc. 30, at 3. K.N. “then took a photo depicting the
    lascivious exhibition of [her] genitals” using the cell phone and “sent the photo to
    [Raiburn’s] cell phone via text message.” Id. Not only did Raiburn admit to these
    facts, but Raiburn also did not challenge any of the facts set forth in the PSR setting
    forth his requests for sexually explicit images from K.N. using the cell phone and his
    solicitation of K.N.’s participation in live video chats of her showering and
    -15-
    masturbating.6 Thus, “consideration of computer use to set the higher sentencing
    range as calculated in the presentence report was therefore undoubtedly correct”
    despite the reference to a different subsection. See Roman-Portalatin, 476 F. App’x
    at 870. In other words, despite the reference and discussion of subsection (ii) of
    § 2G2.1(b)(6)(B), Raiburn suffered no prejudice because the enhancement for
    computer use properly applies based on the undisputed facts pursuant to subsection
    (i). See id.
    III. Conclusion
    Accordingly, we affirm the judgment of the district court.
    ______________________________
    6
    Raiburn argues that he was not afforded “an adequate opportunity to present
    information [about] a sentencing factor [that was] reasonably in dispute.” Appellant’s
    Reply Br. at 2 (emphasis added) (citing U.S.S.G. § 6A1.3 (“When any factor
    important to the sentencing determination is reasonably in dispute, the parties shall
    be given an adequate opportunity to present information to the court regarding that
    factor.”)). Raiburn was afforded the opportunity to challenge the facts set forth in the
    PSR at sentencing, and he did not do so. See R. Doc. 69, at 8 (confirming “[n]o
    factual objections” to the PSR). Those facts establish, as a matter of law, that
    application of § 2G2.1(b)(6)(B) is “undoubtedly correct.” See Roman-Portalatin, 476
    F. App’x at 870.
    -16-